We live in an era where
relativism and humanism affect almost every facet of our lives. Not least among
these facets is the discourse of Islam vis a vis women’s human rights. The
importance of such factors as relativism, humanism and gender sensitivity has
not come about in a vacuum. It is
fairly easy to find in the history of the evolution of the Shari’a, both ancient
and recent (despite what the champions of the theory of the “closed doors of
ijtihad” propound), many useful examples where many welcome and significant
interpretation and interventions have taken place. Unfortunately, however, only
a handful of women interpreters have been active participants in this
evolutionary process. The dearth of women Islamists up until today point out
that women are the subject of the Shari’a but not its legislators.[1]

Bangladesh, through some of its
progressive judicial decisions has come on and off into the limelight of the
discourse on Islam and women’s human rights.[2] I would take the
liberty to term “progressive” decisions as those which add to and complement,
rather than take away, rights of women in order for them to live as complete,
independent individuals as understood by the Constitution of Bangladesh and
various international human rights instruments, particularly the Universal
Declaration of Human Rights and the CEDAW (Convention on the Elimination of all
Forms of Discrimination Against Women). Within the judicial arena a Matter of
crucial importance today for Muslim women around the world and in Bangladesh is
the question of Muslim women’s entitlement to maintenance from their husbands
after their divorce.

Maintenance Under Muslim Law and the
Divorced Woman

It is unanimously agreed
among Muslim scholars and jurists that the woman’s right to maintenance arises
upon marriage and that the wife is first in order of priority to this
entitlement, even before the children, parents and relatives. What is not so
readily agreed upon however, is whether this right is extendable after the
marriage ends. It is the contention of a good number of exponents of Islamic law
that it is.[3]

A constructive meshing of the
several views that exist on this point would help lawyers, jurists and scholars
to arrive at an agreeable plateau on the concept of post-divorce maintenance for
divorced Muslim women. A common point of departure for some experts on this
issue is the meaning of the term “mataa” or
“mut`ah.”

Mataa/Mut'a, The Qur’an and the Principles of
Justice and Reason

Literally taken, the word
“mut’a” is “gratification” or “a gift.”[4] It has two
distinct senses, one being a form of temporary marriage, the other, in referring
to mut’at al-talaq or nafaqat al mut’a, is a payment by a husband to his wife
upon divorcing her.[5] Whether this
“gratification,” “gift” or “payment” has been intended as real compensation or
simply a consolation to a divorced wife, and if so, whether such compensation
and or consolation is compulsory, has been a matter of contention in classical
and contemporary jurisprudence.

The Qur’an makes specific
reference to provision for divorced women by way of maintenance. This is in Sura
II (Baqara), Verse 241.[6] However, in order
to fully appreciate this provision, we need to read the preceding and following
verses along with this verse, and not in isolation from them, as is the practice
among some scholars. Verse 240 lays down the provisions for widows (a year’s
maintenance and residence), and then mentions women who leave the matrimonial
residence on their own. After this comes the provision for women who have not
left on their own, that is, those who have been divorced. The verse immediately
after this provision, (242), begins “Thus doth God make clear his signs...”
making it clear that it is a continuation of the theme of the previous verse
(which specifies maintenance for divorced women). Therefore, on the one hand,
the Qur’an is making a specific provision, on the other hand is also reminding
us that God continuous to provide us signs for guidance so that we may
comprehend and behave accordingly. A simple reading of the Qur’an shows that the
various stages a divorce takes place have been covered. Dissolution of marriage,
according to Muslim law, comes about in two ways: death or divorce. A simple
reading of Verses 240 and 241 show that the Qur’an has made provision for women
who suffer either widowhood or divorce. Whatever discussion takes place as to
the nature of this provision, it cannot discard the simple meaning of these two
verses. The Qur’an, by reminding us that God provides us signs to understand,
also helps us to conduct our journey of interpretation and contextualisation.
Surely this understanding ought be based on the precepts of justice, reason and
sustenance of the spirit of the Qur’an. Here we may want to remind ourselves of
the observations made in the Report of the Commission on Marriage and Family
Laws,[7] “Islam very justly
claims to be a simple and liberal creed... . The Quran says that previous
societies perished because they were burdened with too much inflexible law and
too much unnecessary ritual... . No progressive legislation is possible if
Muslim assemblies remain only interpreters and blind adherents of ancient
schools of law.”[8]

Despite what this Commission had to
say in 1956, and before that prior to the Dissolution of Muslim Marriages Act in
1939 (where the Maliki School, rather than the Hanafi School of law was
adopted), today most of the discussion on post divorce maintenance, which should
have been fairly easy to garner from the Qur’an in the first place, has been
filtered to whether mataa is optional or obligatory, whether it is a gift or a
compensation. The 1956 Commission, on questioning its members and hundreds of
Muslims, whether husbands should pay maintenance to the divorced wife for life
or till her remarriage, part of the answer reads, “ a large number of middle
aged women who are being divorced without rhyme or reason should not be thrown
on the street without a roof over their heads and without any means of
sustaining themselves and their children.”[9]

South
Asia, Mataa and Judicial Decisions

The discourse on mataa and
its import on maintenance and women’s rights under family law, is not new in our
sub-continent. Only recently in Pakistan a case1[10] raised the
question whether the wife’s maintenance is a gratuity. I have already stated
above that the 1956 Commission on Marriage and Family Law took into
consideration the plight of women arbitrarily divorced and rendered destitute,
and recommended that Courts should have the jurisdiction to order a husband to
pay maintenance to his divorced wife for her life or till she
remarried.

Looking back into our
history, it is clear to see that there was never really a forum in which these
questions could be argued. More than a century ago, the Calcutta High Court, in
the case of Abdur Rohoman vs. Sakhina,[11] finding itself
unable to sanction enforcement of a maintenance order issued in favour of a
Muslim divorced wife, observed, “The fact that the power of divorce, given by
the Muhammadan law, may be so exercised as to defeat the intention of the
legislature as expressed in... [The Presidency Magistrates Act] and other
similar enactments, may go to show that further legislation is required, but it
cannot affect the [secular, statutory] law as it stands.” It is clear to see
that the magistrate’s court did not have the authority to decide cases according
to Muslim law. It may be argued that these issues could be raised in ordinary
civil courts. But civil suits do not help the poor, divorced women who
desperately need monetary sustenance for themselves and their children, instead
of complicated, expensive and time consuming proceedings.

Prior to the Muslim Family
Laws Ordinance on 1961, Hanafi Muslim women had no forum to raise the question
of recovery of arrears of maintenance. Under this Ordinance, the Arbitration
Council formed could and did deal with the question and found in favour of
women’s claims. However, we must note that the Ordinance, despite what was
recommended by the 1956 Commission, only comprehended maintenance for married
women, and not mataa for divorced women. It has already been pointed out that
jurists are in agreement that it is permissible to follow a non-Hanafi school
when Hanafi law does not provide relief. This is how our 1961 Ordinance came to
be based on Maliki law. Thus today cases coming before Bangladeshi courts should
not have a difficulty in finding a forum to provide relief to divorced women.
For example, in Gul Bibi v. Muhammad Saleem[12] the argument was
based on justice and common sense and the position that it is possible to borrow
from another school of Muslim law when one school does not provide relief. Thus
the Court held “According to Shiah and Shafi law the wife is entitled to
maintenance notwithstanding the fact that she was allowed to get into arrears
without having the amount fixed by the Court, or by agreement with the
husband...

In
the instant case the parties admittedly follow Hanafi school of thought...
However, as some thinkers of Islam do favour the positive view and such view is
also consistent with reason, logic and common sense, its adoption as a rule in
case of such sects which do not strictly follow that school of thought, would
not be unjustified.”

Today we have the Family
Courts Ordinance of 1985, which not only has a streamlined procedure but also
under which women have to pay only their minimal fees. Now that the question of
mataa - post divorce maintenance, has been raised before the Appellate Division
of Bangladesh, we can be hope that the question has at last found an appropriate
forum for decision.

Some Muslim Majority
Countries Where Women Enjoy Mataa Prior to codification, Egyptian personal law
had been primarily based on the Hanafi School. Judges found themselves being
forced to apply manifestly unjust rulings in cases of maintenance and divorce.[13] Thus Egypt
adopted some of the principles of Maliki and Shafi Schools in cases of
maintenance and some other matters. Jordanian Courts consider compensation for
divorce a financial right of the divorced wife which is not forfeit in the case
of death of the husband.[14] The Egyptian and
Jordanian laws determine cases where divorce is by the unilateral will of the
husband and not by mutual agreement. Both laws stipulate mataa or mut’a, in
addition to maintenance for a divorced women after consummation.

The Malaysian Islamic
Family Law as regards post divorce maintenance is established on the Sura II
Verse 241.The Islamic Family Law (Federal Territory) Act 1984 provides, in
addition to the woman’s right to maintenance, that a woman who has been divorced
without just cause by her husband may apply to the Shari’a Court for mut’a and
the Court may, after hearing the parties and after being satisfied that the
woman has been divorced without just cause, order the husband to pay such sum as
may be fair according to the hukum syara, which is based on Sura II Verse 241 of
the Qur’an.

The
Shari’a Courts in Malaysia have rightly highlighted the distinction between the
iddah maintenance and mut’a or post divorce maintenance. Many scholars confuse
iddah with divorce. In fact, iddah is a continuation of the marriage, being a
waiting period during which a divorce pronouncement may be revoked. Thus during
this time the husband and wife continue to be within a legally married state and
therefore the question of mut’a at this stage does not arise. During the iddah
the woman is entitled to maintenance as a wife. It is after the completion of
the idda period that the divorce becomes effective and thus the question of post
divorce maintenance where the divorce was arbitrarily brought by the
husband.

Moreover, although not
spelled out, a very logical distinction arises from the Malaysian, Jordanian and
Egyptian situation. If the Qur’an has recognized two forms of dissolution
(divorce and death) and has provided very important rights (inheritance etc.) to
the woman divorced by death, would not it be logical to think that the Qur’an
had manifestly intended that the woman divorced during the life time of the
husband would also be entitled to some form of compensation? In both cases we
are talking about a right which arises upon dissolution. It is therefore
redundant whether the spouse divorcing is dead or
alive.

Concluding Observations

We must remember that the
main reason issues such as maintenance rights for divorced women in particular
and reform proposals in personal laws in general, is taking place because
Bangladesh, along with several other countries, Muslim and non-Muslim alike, is
creating various forums in which these issues beg dealing with. It would be
frivolous to say, as some sections of society do, that these
issues are now coming up because of western/feminist/un-Islamic influences on
our society. Significant sections of the Hanafi ummah have adopted non-Hanafi
interpretation of mataa as well as important questions of Muslim women’s rights.
Bangladesh, which has a predominance of Hanafi adherents, implements Maliki
based Muslim laws too. This by itself should be enough for us to realise that
where borrowing from one school would be more consonant with principles of
justice, fairness and equity, it would be erroneous not to do so.
FOOTNOTES

[6] The Holy Quran, English translation by A. Abdullah Yusuf Ali. Sura II, Verse 240: “Those of you who die and leave widows should bequeath for their widows a year’s maintenance; But if they leave (the residence) there is no blame on you for what they do with themselves, provided it is reasonable. And God is exalted in Power, Wise.” Sura II Verse 241: “For divorced women maintenance (should be provided) on a
reasonable (scale). This is a duty on the righteous.” Sura II Verse 242 : “Thus doth God make clear His signs to you: in order that ye may understand.